Execution of deeds: must the signatory see the witness sign? - Quick reads - Gateley
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Execution of deeds: must the signatory see the witness sign?

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The High Court has held that a mortgage deed was validly executed where the signatory signed in the presence of a witness but the witness's signature was added later, not in front of the signatory to the deed.

Key requirement for executing a deed

The case [1] arose out of two disputed mortgages relating to a buffalo farm in Somerset.

One of the grounds on which the farmer challenged the mortgages was that they had not been properly executed as deeds. The key legal requirement for a deed executed by an individual is that it must be signed by the individual in the presence of a witness who attests the signature.

In this case, the farmer did sign the mortgage in the presence of a witness (the mortgage broker). But the signature of the mortgage broker, purporting to witness the farmer's signature, was added later when the farmer was not present.

The farmer argued that, in order to be valid, both the person executing the deed and the witness must not only sign the deed but they must both do so in the presence of the other. The mortgagee argued that while the person executing the deed must certainly sign in the presence of the witness, the witness need not sign in the presence of the person executing the deed.

Was the deed valid?

The judge agreed with the mortgagee. He said that whilst there was an express legal requirement that the person executing the deed must do so "in the presence of a witness who attests the signature", by contrast there was no similar wording in relation to the witness. Those responsible for drafting the relevant legislation could easily have included a requirement that the witness should sign in the presence of the person executing the deed, the judge said, but they didn't.

Given the clear wording, the judge said that the proper interpretation of the legislation is that while the person executing the deed must sign in the presence of a witness, the witness does not have to sign in the presence of the person executing the deed (or indeed anybody else).

So the challenge to the mortgages based on lack of due attestation was rejected (although the farmer was successful in her challenge on other grounds).

What about companies?

This case related to the execution of a deed by an individual. But the same language is used in the relevant provisions for companies: a company can execute a document by the signature of a director in the presence of an attesting witness. So it seems likely that the same conclusion would be reached for documents executed by a company where the witness saw the director sign but the director did not then see the witness sign.

Special rules for wills

The judge rejected the farmer's arguments because the legislation governing the execution of deeds didn't expressly require the signatory to be present when the witness signed. But the law dealing with the execution of a will by an individual does specifically require this: the testator must sign in the presence of two witnesses who must then each sign "in the presence of the testator".

Further tips on executing documents

For more advice on executing documents, contact a member or our team, or take a look at our frequently asked questions here: FAQs on signing deeds and documents.

[1] Wood v Commercial First Business Limited [2019] EWHC 2205 (Ch)

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